Gauhati High Court
Dharam Chand Joshi vs Satya Narayan Bazaz on 13 March, 1992
Equivalent citations: AIR 1993 Gau 35
Bench: D Baruah
1. This revision petition is directed against the judgment and decree dated 19-9-84 passed by the Assistant District Judge, No. 1, Kamrup, Guwahati, in Title Appeal No. 3/84 dismissing the appeal and affirming the judgment and decree passed in Title Suit No. 35/80 by the Munsiff, Nalbari.
2. The opposite party brought a suit (TS No. 35/80) in the Court of the Munsiff, Nalbari, praying for a decree for khas possession of the suit house and for recovery of Rs. 8,100/- on account of compensation and mense profit for wrongful use and occupation etc. The petitioner filed written statement and contested the suit. The learned trial court framed five issues and after examining the witnesses by his judgment dated 19-12-83 decreed the suit; answering all the issues in favour of the plaintiff.
3. The petitioners preferred an appeal (T.A. No. 3/84) before the Assistant District Judge, No. 1, Kamrup. The appeal was also dismissed with costs giving two months time to defendants/petitioner to vacate the suit premises. The learned Assistant District Judge, however, white deciding the appeal reversed the decision on issue No. 4 in favour of the petitioner holding that there was no bona fide requirement of the suit premises. Hence this revision petition.
4. The case of the petitioner is that the opposite party brought the suit against the petitioner for ejectment from, the suit premises on the ground of default in payment of rent for bona fide requirement. The petitioner appeared in the suit and filed written statement denying the allegations made in the plaint. The courts below granted decree. However, the trial court granted decree both on the ground of default in payment of rent and for the bona fide requirement of the opposite party/plaintiff, but the appellate court reversed the finding on issue No. 4 holding that the suit premises was not bona fide required by the opposite party. The Appellate court dismissed the appeal and granted ejectment on the ground that the petitioner was a defaulter.
5. I have heard both sides. Mr. N. Chakraborty, learned counsel for the petitioner submits that the petitioner was not a defaulter and the learned courts below committed illegality in exercise of his jurisdiction by completely ignoring the relevant materials on record. The main grievance of Mr. Chakraborty is that the trial court rejected the Exhibit-Ka, a Khata maintained by the petitioner in respect of expenditure of suit house including payment of rents etc. The learned trial court ignored the Exhibit-Ka and rejected the contention of the petitioner that he made payment of rent as required under the law. The Opposite Party disputed the authenticity of the said 'Khata' and also stated that the entries made in the Khata did not tally with the statements made in the written statement as well as in the evidence of the defendants. The trial court, held that the whole book was kept untidily and page number were over-written in many places and the book was silent about the dates and persons to whom house rents were paid. The trial court also found that the Exhibit-Ka was not kept in regular course of business and as such it could not be relied upon as envisaged under Section 34 of the Evidence Act, and, therefore, the petitioner's attempt to show that the rent was paid, with the help of Exhibit-Ka was rejected by the trial court. The learned trial court while coming to that finding discussed all the materials including the Exhibit-'Ka'.
6. The learned appellate court also discussed the materials on record regarding the ground of default in payment of rent. In doing so, the learned appellate court dealt with the Exhibit-Ka and took into account all the relevant materials of Exhibit-Ka by which the petitioner claimed to have paid rent. The appellate court held that the manner in which the entries made in Exhibit-Ka, it could not be said that the petitioner/defendant paid rents in time. There was also nothing to show that the petitioner/defendant was prevented from getting receipts from the landlord. If the landlord refused to grant receipts, the petitioner could have made the payment either by postal money order or by bank draft to ensure proper receipt. Since there was no evidence to show anything to that effect the appellant failed to prove that he was not a defaulter. Therefore, the learned court below found that the petitioner was defaulter and he was liable to be evicted. Mr. Chakraborty, learned counsel for the petitioner has strenously argued that the learned court below failed to exercise its jurisdiction vested in it by rejecting the Exhibit-Ka, where entries of payments were made. According to him, the entries made in Exhibit-Ka ought to have been taken into consideration by the Courts below, more so, by the appellate Court. Mr. Chakraborty has also submitted that under Section 34 of the Evidence Act, the entries made in Exhibit-Ka ought not to have been rejected.
7. Under Section 34 of the Evidence Act, entries in the books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but such entries shall not alone be sufficient evidence to charge any person with liability or for showing payment. The principle of Section 34 is to admit only such statements recorded by the parties in his own behalf as a books of account, kept in the regular course of business. Therefore, when an entry of that kind is supplied, it must be shown to be a book and that book must be a book of account and that account must be one regularly kept in the course of business, as envisaged under the said section, Ordinarily collection of sheets of papers bound together with the intention that such binding shall be permanent and the papers used collectively in one volume can be said to be a book of account under Section 34. Unbound sheets of paper, in whatever quantity, though filed in with one continuous account, are not a book of account within the meaning of Section 34 of the Act. It is again only a corroborative evidence; it must be supported by some other evidence. Therefore, even if the Exhibit-Ka is to be taken into consideration as a book of account regularly kept in the course of business, it has got only a corroborative value and it must be supported by other evidence.
8. Mr. J. N. Sarma, learned counsel appearing on behalf of the Opposite Party has placed reliance on the decision of the Supreme Court in Kurapati Venkata Mallayya v. Thondepu Ramaswami and Co., AIR 1964 SC 818. Relying on this decision Mr. Sarma has submitted that Exhibit-Ka was not properly maintained and there were interpolation and over-writing in the book and some of the writing were written in a cramped space, therefore, no reliance can be placed on the said Exhibit-Ka. In Venkata Mallayya (supra) the Supreme Court observed as follows at Page 823 :
"....112 bales weighing 28, 196 pounds at 8 annas per pound" appear to be written closely and that the sum of Rs. 14,098/- appears to have been written in different ink. This entry is at the end of the page and if the words "112 bales weighing 28, 196 pounds at 8 annas per pound" had been written contemporaneously there was no reason for writing them in a cramped style on the same page but rather on the next page. Then again if the figure of Rs. 14,098/- had been written contemporaneously it should have appeared in the same ink and not in a different ink. These circumstances, in our opinion, detract from the value of this entry and we would, therefore, be justified in accepting the opinion of the trial court....".
From the above decision also, according to Mr. Sarma, the Exhibit-Ka cannot be accepted as evidence of payment of rent.
9. In the instant case, the appellate court did not accept the Exhibit-Ka. Besides, both the courts below have held that the Exhibit-Ka was not kept as required under the law. Page numbers were found over-written and there were interpolations here and there, and some of the writing were in compressed space, therefore, the courts below had doubted the credibility of the Exhibit-Ka. These are findings of the facts and I find no material on record to come to a different finding.
10. Next submission of Mr. Chakraborty, learned counsel for the petitioner is that even though the plaintiff/opposite party filed the suit on the ground of default in payment of rent and the petitioner in his written statement controverted the allegations, and the Court failed to frame any issue, and, therefore, without framing issue in respect of the said ground, both the Courts below held that petitioner was a defaulter, therefore, the judgments and decrees passed by the Court below are liable to be set aside.
11. Mr. Sarma, learned counsel for the opposite party has submitted that as the parties were well aware of the issue and they had led evidence in that respect, there was nothing wrong in deciding the said issue without formally framing the issue. Mr. Sarma has placed reliance on the decision of the Supreme Court in Nedunuri Kameswaramma v. Samapati Subha Rao, AIR 1963 SC 884. In the said decision, the Supreme Court observed as follows (at page 886):--
".....No doubt, no issue was framed, and the one, which was framed, could have been more elaborate, but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion.....".
It is true that no issue was framed on the ground of default in payment of rent, but the facts remain that both the parties adduced evidence on this ground and the parties were at issue during trial.
12. As per the decision of the Apex Court non-framing of issues is not a ground for dismissal of the suit when the Courts below discussed the evidence, and, therefore, merely because the issue was not framed, the case neither be dismissed nor should be remanded. When the evidence on record is sufficient and parties to the suit were aware of the fact, findings arrived at by the Courts below holding that the petitioner was a defaulter, in my opinion, cannot be set aside on the ground of non-framing of issue.
In view of the above, I do not find any merit in the petition, therefore, the petition is dismissed. No costs.
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